Tyranny in the Infrastructure

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Tyranny in the Infrastructure

The CDA was bad - but PICS may be worse.

In a few weeks, the Supreme Court is expected to strike down the Communications Decency Act in the name of the First Amendment. No doubt the victory will prompt a great deal of celebration. Yet I wonder if we'll be happy in the world the decision will leave behind. While many think that efforts to "regulate" speech in cyberspace will be crippled after the CDA goes down, the Court's ruling may have the opposite effect.

Washington pundits expect Congress to propose a "Son of CDA" soon after the Court issues its decision. But instead of trying to restrict access to a specific category of speech - "indecency" or "pornography" - CDA II will likely mandate the deployment of technologies that allow parents to select the types of speech they want to block. By shifting the burden of censorship from online publishers to individual users, the legal code won't be the censor anymore; instead, software code will do the censorial dirty work.

This alternative is often praised as a "private" or "user-empowering" solution to the indecency problem. URL-blocking software such as SurfWatch or Cybersitter, which works by restricting access to specific addresses, was the first version of this idea. More recently, in response to cyberporn hysteria, the World Wide Web Consortium has developed a sophisticated technology called the Platform for Internet Content Selection, or PICS. Blocking software is bad enough - but in my view, PICS is the devil.

PICS is an HTML standard that makes it possible to filter material on the Net. It is not a filtering technology; rather, PICS is a labeling standard that establishes a consistent way to rate and block online content. PICS doesn't target any particular category of speech. Instead, private agencies will use PICS to develop their own content rating schemes. The Christian Coalition, for example, could have a rating system, as could the ACLU. Parents would then select the content rating systems they want to use. In this way, PICS is viewpoint-"neutral." It doesn't discriminate among filters or rating systems; it supports the Nazi Party as much as the Jewish Defense League.

However, no technology is truly neutral, and PICS will have an effect. (See "Put on the Red Light," Wired 5.03, page 127.) The PICS filter can be imposed at any level of the distribution chain - at the level of the individual user, the proxy server, the ISP, or the nation-state. "Neutral" or not, PICS will have a devastating effect on free speech all over the world.

As part of the Web's infrastructure, PICS will be an extremely versatile and robust censorship tool - not just for parents who want to protect their kids, but for censors of any sort. PICS will make it easier for countries like China or Singapore to "clean up" the Net; it makes it easier for companies to control what their employees can see; it makes it easier for libraries or schools to prevent patrons from viewing controversial sites. PICS makes censorship easy because it embeds the tools of censorship into the root architecture of online publishing. As HotWired columnist Simson Garfinkel has described it, PICSis "the most effective global censorship technology ever designed."

This kind of talk makes cyberactivists uneasy. For the most part, their efforts have focused on government-sponsored Internet regulation schemes. Yet they have overlooked the most troubling form of online regulation: that imposed by changing the architecture of the Net. Software code - more than law - defines the true parameters of freedom in cyberspace. And like law, software is not value-neutral.

The same point could be made about other cyber rights issues. While Bruce Lehman's efforts to expand the legal rights of online copyright holders are currently in limbo, technologists such as Mark Stefik from Xerox PARC now predict that the Net is moving toward the use of "trusted systems" - architectures that facilitate perfect control over the online use and distribution of copyrighted material. But what then happens to the fair use rights the law now guarantees? The question is not whether law will do enough to protect intellectual property, but whether code will do too much. This has prompted University of Pittsburgh law professor Julie Cohen to pen what others have called the Cohen theorem: One has a right to hack trusted systems in order to defend traditional rights of fair use.

I don't take issue with the values inherent in any one particular system of code. My criticism is directed against those who think about cyber regulation solely in terms of "law." Laws affect the pace of technological change, but the strictures of software can do even more to curtail freedom. In the long run, the shackles built by programmers may well constrain us most.